Plaintiffs Jane Doe I and Jane Doe II have brought a six count second amended complaint against defendants Board of Education of Consolidated School District 230 ("District') and Arlene See, Daniel Romano, Patrick Vasquez, Charles Cummings, Lisa Otto, Cyndie Skroch and Dr. Timothy Brown (jointly as the "individual defendants") in their individual capacities as Assistant Superintendent and Principal (See), Band Director (Romano), Choir and Winter Guard Instructor (Vasquez), Winter Guard and Marching Band Instructor (Cummings) and Teacher-Sponsor for Winter Guard and Marching Band (Otto and Skroch). The suit alleges that "while acting as [their] instructor, Vasquez engaged in sexual relations with plaintiffs who were minor students." Count I is brought against the individual defendants pursuant to 42 U.S.C. § 1983, alleging that the individual defendants violated plaintiffs' Fourteenth Amendment and substantive due process rights by "promulgating and maintaining policies which foster sexual abuse of minor female high school students at Andrew High School by Vasquez . . .." Count II is against the District, again pursuant to § 1983, alleging that the District acquiesced in or ratified the activities of the individual defendants, resulting in policies, customs or practices which facilitated the sexual abuse of plaintiffs by Vasquez. Counts III and IV are state law claims against the District for negligent hiring and retention of Vasquez. Count V is a claim against Vasquez for assault and battery, and Count VI is against the individual defendants for violations of the Illinois School Code.

Plaintiffs have moved for partial summary judgment against the District on Counts, II, III and IV and against Romano on Count I. The District has filed a cross-motion for summary judgments on Counts II, III IV and VI. The individual defendants have moved for summary judgment on all counts. For the reasons set forth below plaintiffs' motion is denied, and defendants' motions are granted in part and denied in part.

Facts

While few of the underlying facts are undisputed, all of the parties to this lawsuit agree that Vasquez, who was an Instructor for the Andrew High School Winter Guard and Marching Band ("Winter Guard"), had a sexual relationship with two of his students during the 1994-95 school year. The first student, identified as Jane Doe I, was 16 in late April 1994 when the relationship began. That relationship ended June 3, 1995. Jane Doe I was a member of the Winter Guard throughout that time period. Jane Doe II was 15 in late October 1994 when her relationship with Vasquez began. That relationship ended in February 1996. Jane Doe II was also a member of the Winter Guard throughout that period. (Jane Doe I and Jane Doe II will be referred to herein as "plaintiffs".)

Vasquez was originally hired as an Instructor for Winter Guard in 1985. He was approximately 20 years old at that time. He continued in that position until 1990. He took the 1990 season off, according to plaintiffs, because he was divorcing his wife and marrying a 1990 Andrew graduate who had been in the Winter Guard Program the year before. Vasquez, however, testified that he took the season off because he was in an intensive apprenticeship program at his day job that required all of his time. He was rehired in Fall 1991, apparently on defendant Romano's recommendation, and remained an instructor until February 14, 1996, when he was arrested as a result of his relationships with Jane Doe I and Jane Doe II.

It is also uncontested that plaintiffs, as well as Vasquez, worked hard at keeping the relationships secret. Indeed, neither plaintiff knew of the other's involvement with Vasquez. Nor, apparently, were they aware that between April 1993 through August 1994 Vasquez had a sexual relationship with Skroch, a teacher-supervisor of the Winter Guard. There is also nothing in the record to demonstrate that any of the individual board members had actual knowledge of the situation.

Discussion

Federal Claims

Count I

In Count I, brought pursuant to 42 U.S.C. § 1983, plaintiffs charge the individual defendants with having "promulgated and maintained policies which fostered sexual abuse of minor female high school students at Andrew High School by Vasquez . . .." The doctrine of respondeat superior cannot be used to impose § 1983 liability on a supervisor for the conduct of a subordinate violating a plaintiff's constitutional rights. Lanigan v. Village of East Hazel Crest, Illinois, 110 F.3d 467, 477 (7th Cir. 1997). Supervisory liability will be found, however, if the supervisor, with knowledge of the subordinate's conduct, approves of the conduct and the basis for it. Id. "Personal involvement is a prerequisite for individual liability in a § 1983 action. Supervisors who are simply negligent in failing to detect and prevent subordinate misconduct are not personally involved. Rather, supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate, reckless indifference." Gossmeyer v. McDonald, 128 F.3d 481, 491 (7th Cir. 1997) (citations omitted).

In the instant case, there is no evidence clearly demonstrating that any of the individual defendants had actual knowledge of the sexual relationships between plaintiffs and Vasquez, or that they condoned or directly facilitated Vasquez's conduct. Therefore, they can be liable only if there are facts to support an inference that they acted with deliberate, reckless indifference, i.e., that they turned a blind eye to the evidence before them.

The facts regarding what each of the individual defendants knew are hotly contested. Plaintiffs assert in their brief that "there is ample evidence that Romano, Skroch and Otto knew about instances of sexual abuse between Vasquez and minor female students before and during the time in which plaintiffs were abused." Plaintiffs' citations to the record, however, do not support such a strong statement. At most, the record reveals that: (1) the individual defendants were aware of rumors about Vasquez and plaintiffs, which rumors plaintiffs consistently and unequivocally denied; (2) defendants knew that plaintiffs were helping Vasquez chart Winter Guard programs at his house after school hours; (3) Skroch and Otto discussed their own personal, sexual and marital lives with Winter Guard members; and (4) Skroch was having sexual relations with Vasquez. There is also testimony from one plaintiff that Skroch was aware of the situation between Vasquez and plaintiffs. This testimony was denied by Skroch. In addition, all of the individual defendants knew that Vasquez had married a former student shortly after her graduation.

Although there is no direct evidence establishing that any of the individual defendants had actual knowledge of Vasquez's relationships with plaintiffs, the evidence set forth above, if true, could lead a reasonable jury to conclude that some or all of the individual defendants had enough knowledge to suspect some improper activity and did nothing about it. Because the extent of that knowledge is in dispute and material to any claim that "they turned a ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.